You better be careful blowing the whistle — new laws have holes

New legislation makes it safer for good citizens to blow the whistle on corruption. But there are plenty of traps for inexperienced players, writes former whistleblower Brendan Jones.

With the passage of the Commonwealth’s Public Interest Disclosure Act you would think the golden age of whistleblowing has arrived. The Public Sector Union went so far as encouraging its members: “Anyone working in government who is witness to, or has information about corruption or maladministration can now make a disclosure without fear of reprisals. These new laws will protect them from payback.”

That’s not true. The new law is better than what we had, which was nothing. But it still has serious loopholes. It’s reckless to encourage whistleblowers without warning them of the dangers.

The biggest failing of the new laws is that agencies will still investigate their own complaints. No minister wants to front a press conference on corruption in their department. An internal complaint unit can make the whole thing go away by tipping off the perpetrator and terrorising the whistleblower. The government can sit on a complaint indefinitely during which time the whistleblower is vulnerable to retribution and cannot talk to the media.

The new laws will be overseen by the Commonwealth Ombudsman. Although the Ombudsman’s office presents itself as a powerful oversight agency, whistleblowers find it a craven organisation reluctant to use the powers it already has. Janice Weightman, who blew the whistle on forged Defence security clearances, told The Courier-Mail:

“Five of us went to the Ombudsman but didn’t get anywhere. They put it in the too-hard basket. We were given the impression that no one wins against Defence; they are too big and too powerful.”

The Ombudsman will make any excuse not to get involved. If those excuses are put under the spotlight and found wanting, they respond along the lines of: “As a matter of courtesy, I need to advise you that any further correspondence about the issues already investigated will be read and filed but not responded to.”

Although the new laws give the Ombudsman increased powers, it remains an organisation reluctant to challenge fellow public servants. On the other hand there are no negative consequences for fobbing off a whistleblower. The organisation has been known to promise whistleblower protection then abandon them. Any whistleblower who trusts the Ombudsman with their welfare is at serious risk.

“The safest course of action for a whistleblower remains not make the complaint in the first place.”

Under the new laws, reprisals against whistleblowers are punishable by up to two years imprisonment, but as the CSIRO did when it sacked three whistleblowers, employers can claim the sackings are coincidental. Further, this would be enforced by the AFP who have been shown to be reluctant to uphold existing laws against crime within the public service. The AFP can sit on crime reports for years and if pressed, refuse to act. As one whistleblower told The Age:

“It was always ‘Yeah, we’re working on something else’ or ‘I’m overseas, we’ll get back to you’. And it sort of petered out after four or five months to no contact at all.”

The laws allow a whistleblower to go to the media if an investigation is “inadequate”, but this is vaguely defined. If the courts later disagree, the whistleblower could find themselves imprisoned or with a criminal record like fellow whistleblower Allan Kessing.

The new laws allow whistleblowers who suffer harm to sue for damages. When they do they will discover government lawyers make money not by quietly settling cases, but by escalating them. The Model Litigant Policy should stop this. It requires government lawyers to offer alternative dispute resolution and keep costs to a minimum. But government lawyers have been breaking this law for years. The government has the power to stop them, but doesn’t.

You may have heard of million-dollar “punitive damages” that courts occasionally award to punish an egregious offender and discourage repeat behaviour. Not so the new whistleblower laws which exclude punitive and exemplary damages. Instead, the whistleblower is only entitled to damages “to put them back in the position they would have been in”, and they still risk being held liable for costs. The safest course of action for a whistleblower remains not make the complaint in the first place. The new laws won’t protect whistleblowers reporting corruption by politicians.

Whistleblowers need to understand what they’re getting into. Their complaint will not be quietly resolved in a few weeks. It will drag on for years. It will cost them their job, their life savings and often their family. Their colleagues will turn on them. They will find it difficult to get another job; no one wants to work alongside a whistleblower. Some commit suicide. Civil rights lawyers and investigative journalists will not support them. Most lawyers will refuse to represent them. The opposition won’t help; it dislikes whistleblowers for the same reasons as the government. The public will not thank them. The public won’t even know their name.

The only thing worse than a corrupt society is one that harms the only people brave enough to report it.

*Brendan Jones is a military software engineer and Defence whistleblower

UPDATE. Attorney-General Mark Dreyfus issued the following statement to Crikey in relation to this story.

In relation to ‘You better be careful blowing the whistle – new laws have holes’, it is unquestionable that Commonwealth public-sector whistleblowers will have greater protection under the Government’s Public Interest Disclosure Act 2013 than prior to the commencement of the Act. The Public Interest Disclosure Act provides a clear set of rules for agencies to respond to allegations of wrongdoing made by current and former public officials, and strengthens protections against victimisation and discrimination for those speaking out, including what Professor A.J. Brown, a leading expert on whistleblower laws, has called ‘international best practice’ in giving whistleblowers recourse through the Fair Work Act to seek remedies against their employer.

The Act strikes the right balance to achieve a comprehensive and effective framework to ensure that disclosures of wrongdoing are properly investigated and dealt with, and to ensure protection for public officials who make public interest disclosures. It will encourage a pro-disclosure culture, by facilitating disclosure and investigation of wrongdoing and maladministration in the Commonwealth public sector. The passage of this legislation means that the Commonwealth will join the other Australian jurisdictions with dedicated legislation to facilitate the making of public interest disclosures and to protect those who make them.

To clarify some inaccuracies and omissions from Mr Jones’ article.

Mr Jones accepts that under the Act reprisals against whistleblowers are an offence punishable by up to two years imprisonment. But offences also apply to protect the identify of whistleblowers and, in addition to the criminal sanctions which may be imposed for ‘terrorising’ a whistleblower, he or she can apply under the Act to the Federal Court or Federal Circuit Court for a civil remedy, or alternatively seek recourse under the Fair Work Act.

A whistleblower who seeks redress through the courts will not be liable for the costs of the agency or department unless the proceedings are vexatious, without reasonable cause or unreasonably cause the other party to incur costs. However, a court can still order that the agency or department pay the costs of the whistleblower, if it is unsuccessful in defending its claim.

The government cannot ‘sit’ on a disclosure indefinitely. There are time limits under the Act for steps to be taken to handle a disclosure, and this includes when an investigation into a disclosure must be completed. One of the criteria for external disclosure, including to the media, is if the investigation has not taken place within the statutory time limit.

One of the grounds that allows an external disclosure is for a whistleblower to believe on reasonable grounds that an investigation was inadequate.

The Ombudsman has significant oversight powers under the public interest disclosure scheme and is required to report annually on disclosures received during the year and any complaints made about the handling of those disclosures.

You make an excellent point. The fact that agencies still investigate their own complaints is the main reason whistleblowers will not be protected. There is a dire need for an external body, whether it is the Ombudsman or the APSC, or a new agency to handle whistleblower disclosures and investigations.

I reckon let them go straight to the media which has a vested interest in getting hold of a story rather than the public service which has a vested interest in keeping things quiet and easy.
Dracula is not the right custodian for the blood bank.

The Public Interest Disclosure Bill is only now (barely) acceptable because one of the Greens’ (three proposed) amendments was accepted at the 2nd Reading.
Dreyfus’ original recommendations, after 18+ months of bi-partisan & bureaucratic obfuscation was a backward step as it required anyone with legitimate concerns to first approach their line manager. As it usually those further up the food chain who are complicit that would be the best way to alert them. Only after 3 more such steps, up the chain of command (sic!)would there have been some slight justification for going public. Lotsa luck keeping your head by then.
Had the three Green amendments & those of Sen. Xenophon been accepted we would have had real protection for the whistleblower and immense benefit to the public interest.
Is a slice really better than no bread at all? Only to those starving for true accountability.

Linton Besser at Fairfax ran an investigative series about how internal complaints units and the AFP weren’t investigating public service crime. Public Service Minister Gary Gray dismissed Besser’s reports out of hand, and said “The Public Service Commissioner can also initiate an investigation into any matter relating to the APS.” I wrote to the PSC who wrote back denying it.

Jean Lennane of WBA says any Ombudsman officer who who makes life difficult for fellow bureaucrats risks their own career. Without support from the ministers down, it’s safest to look the other way. A WBA survey showed no whistleblowers found the Commonwealth Ombudsman helpful.

The AFP is so reluctant their Association wants US-style Fraud Laws which effectively outsource criminal investigations to private law-firms to pursue for profit. If the AFP were doing their job that wouldn’t be necessary.

The Commonwealth has no truth-seeking anti-corruption body like ICAC. Gray Gray claims one isn’t needed because the Ombudsman, PSC, etc. already provide oversight. Clearly, they don’t.

@Damien McBain

Superficially Australia looks like the US so you’d think we have the same free speech rights, so it comes as shock to people we don’t. Under the Public Figure Doctrine in the US if the press learns of corruption they can report it promptly. It’s not like that in Australia where journos must sit on stories, sometimes for years. Consider the press couldn’t report allegations that NSW Premier Robert Askin was corrupt until he was dead!

Giving the press Public Figure Doctrine protection in Australia would help. Gareth Evans sees problems with it, but the US Supreme Court points out what while free speech has its problems, not having it has even more problems. (Check out Chapter 17 of “Retreat from Injustice” by Nick O’Neill & the ANU’s Simon Rice).

@Abuse Bot

True! A WBA survey showed: 90% of whistleblowers are fired, 20% have a relationship breakdown, 20% are sued for defamation, 9% go bankrupt and 6% commit suicide. Anyone thinking about whistleblowing needs to where they’re likely to end.

@AR

The new laws are a start and might eventually morph into something useful, but as they are I wouldn’t recommend anyone use them.

Some things about the new laws are worse: Under Section 20 journalists now risk 6 months jail, and government lawyers might try and use the new laws to stop victims from suing for Common Law Misfeasance (a very good old law which the public can use to hold corrupt officials to account when their peers won’t).

A most comprehensive piece Brendan. Thank you so much for taking the time to write it and for Crikey to provide a platform to raise these critical issues.

Section 3 of PIDL (Public Interest Disclosure Legislation) states that the Act does NOT make the Crown liable for pecuniary damages or prosecution.

This was a special message from the Crown to me to quash court case like mine (being the first case to formally use the common law tort of misfeasance in a whistleblower situation against senior public officials in Australia), holding the Crown vicariously liable.

The reality, is that PIDL declares itself a sham from that section onwards.

Whistleblowing, particularly Organisational Whistleblowing the kind that involves disclosable conduct mentioned at section 29 (conduct that is unjust, oppressive, unreasonable, constitutes wastage of public monies and results in adverse health affects to a lot of people) is not usually engaged by one or two public officials, it is usual that such conduct is engaged by a group of senior public officials directly representing the Crown.

It is this kind of whistleblowing that would unleash on the whistleblower the wrath of these officials who usually hold very senior positions and are the very authorised officers to receive the whistleblowing allegations in the first place. These senior officers often collude and mob the whistleblower by taking reprisals that endanger their health and wellbeing i.e. stopping contracts, forcing the whislteblower out of the organisation, referrals to psychiatrists and severe reputational attacks. You would have to have a very senior role to be able to carry out such reprisals. The very people entrusted by PIDL to protect you are the very people you would be whistleblowing about and the very people taking reprisals against you. They are the same people that have very senior friends at the Ombudsman and the Australian Public Service Commission that also eventually get involved in the mobbing…

The only protection for whistleblowers is to disengage from sham investigations into their complaints and go straight to the media. Otherwise, whistleblow underground…(for more information on how to do this please contact me on 0425 754 299- Serene Teffaha- Human Rights Advocate)

PIDL has empowered the brutality of the representatives of the Crown and provided a legislative mechanism to eliminate whistleblowers earlier on. The only difference between Nigeria and Australia is that the Australian Government and its Bureaucratic representatives are a bunch of ruthless, double faced hypocrites who smile at you and say they care, while they dig that dagger in you slowly and deeply!

Without real ramifications there is no impetus to effect any form of meaningful change. Until senior bureaucrats are made publicly accountable for their serious misfeasance and maladministration there will be absolutely no improvement in the culture of the Australian Public Service and other Federal Agencies. Senior Public Officials who in many cases are remunerated far in excess of the Prime Minister are not providing any reasonable value proposition to the Australian Public as a result of the way in which many of them conduct themselves.

Mr Jones accepts that under the Act reprisals against whistleblowers are an offence punishable by up to two years imprisonment.

The AFP have to act on the complaint in the first place (my own crime report is now two years old and still uninvestigated). And the reprisal has to be proven beyond a reasonable doubt. Unless the agency is stupid enough to leave evidence (e.g. an e-mail saying “I am sacking this guy because he blew the whistle on us”), they can claim the sackings are coincidental. Is the CSIRO going to reinstate the whistleblowers they sacked?

A whistleblower who seeks redress through the courts will not be liable for the costs of the agency or department unless the proceedings are vexatious, without reasonable cause or unreasonably cause the other party to incur costs. However, a court can still order that the agency or department pay the costs of the whistleblower, if it is unsuccessful in defending its claim.

There has been a vigorous debate in Queensland where the CMC whistleblowers face criminal charges for making “vexatious” complaints. Fitzgerald Inquiry whistleblower Nigel Powell said of of the CMC changes: “You will have an official body saying, ‘you better be pretty sure of what you got, because if we find you are vexatious and you don’t have a firm basis for what you are saying, then you could be prosecuted’,” … “Now, what was I saying then – had I actually seen corruption take place? No. “Had I had actual evidence of money crossing hands? No. I had my suspicions, which no longer sounds like it would be enough to make a complaint.”

Under the PID the whistleblower won’t face criminal charges, but they will still face a costs order that could bankrupt them. Whistleblowers get nothing out of making a complaint. In return they could lose the family home. Why should they take that risk?

The government’s lawyers claimed my complaint was vexatious, and other whistleblowers said they were accused of the same thing. It appears to be standard operating procedure for government lawyers.

in addition to the criminal sanctions which may be imposed for ‘terrorising’ a whistleblower,

We’ve already established the AFP can sit on crime reports.

he or she can apply under the Act to the Federal Court or Federal Circuit Court for a civil remedy, or alternatively seek recourse under the Fair Work Act.

The Commonwealth has been breaching the Model Litigant Policy for years. (Google “Gillard government lashed for ‘ignoring’ breaches of model litigant rules”) Because of that any individual who goes to court is up against the full force of the Commonwealth’s lawyers. In my case they ignored my repeated requests for alternate dispute resolution, ran up a huge legal bill and threatened me with a costs order at the first hearing. I couldn’t risk bankruptcy, so dropped the case. A prominent lawyer had advised me: “You are wise to try and get out of this - otherwise it will be long, agonising and expensive (and bad for your health). Such is the justice system. The nastiest, baddest, richest litigant holds all the cards.”

The government cannot ‘sit’ on a disclosure indefinitely. There are time limits under the Act for steps to be taken to handle a disclosure, and this includes when an investigation into a disclosure must be completed.

It can be extended indefinitely, in 90 day lots.

Common sense says at some point the Ombudsman should put their foot down, but e.g. on 2011-03-24 the Ombudsman told me they thought the delay was reasonable. (I asked them “Do you really think not taking even rudimentary steps to secure evidence for two years is appropriate? Particularly when it was still in the hands of the perpetrators? And particularly when the head of the department concerned had been tipped off and had a Conflict of Interest?” They had also failed to interview other witnesses in that time, and ultimately refused to even speak to them.)

On 2011-06-07 the Inspector General of Defence wrote: “I acknowledge that it took my office around 10 months to finalise our inquiries and this is longer than I would have liked. However, when one takes into account the inherent complexity of the matters raised, … it was simply beyond our capacity to finalise the matter more quickly.” In fact for most of that time they were doing nothing, and this makes the point they can offer any reason (e.g. claiming they are under resourced or still in “assessment phase”) and the Ombudsman won’t challenge it.

One of the criteria for external disclosure, including to the media, is if the investigation has not taken place within the statutory time limit.

Which can be extended indefinitely, in 90 day lots: “An investigation under this Division must be completed within 90 days after the relevant disclosure was allocated to the agency concerned” but “the Ombudsman may extend, or further extend, the 90 day period by such additional period (which may exceed 90 days) as the Ombudsman considers appropriate: (a) on the Ombudsman’s own initiative; or (b) if the agency is not the Ombudsman— on application made by the principal officer of the agency; or …”

One of the grounds that allows an external disclosure is for a whistleblower to believe on reasonable grounds that an investigation was inadequate.

The whistleblower can’t deem the investigation “inadequate” until it is over. For my complaint they waited until just before the State of Limitations expired when the Minister concerned (through Senator Hogg) told me: “your only course of action is litigation, as this case is outside the scope of a review.”

The Ombudsman has significant oversight powers under the public interest disclosure scheme and is required to report annually on disclosures received during the year and any complaints made about the handling of those disclosures.

The Attorney-General’s OLSC (Office of Legal Service’s Coordination) has similar reporting powers on the Model Litigant Policy and look where that’s got us.

The Ombudsman doesn’t use the powers they already have.

But offences also apply to protect the identify of whistleblowers and,

This is needed. (The Defence Whistleblower Scheme had promised anonymity but the Defence complaints unit despite my written instructions breached my anonymity on the very first day.) But the new offence also means journalists brave enough to report on corruption must now take care to avoid the 6 months jail themselves. Chris Masters himself spent 13 years in civil court after reporting on Fitzgerald corruption in Queensland. He won, but it took a big chunk out of his life and savings. You can’t expect journalists to investigate corruption if that is the price they have to pay.

The same applies to whistleblowers. They get nothing out of reporting corruption, and you are asking them to risk everything, for a government with a very poor track record of protecting whistleblowers:

Minister for Justice Jason Clare refused to pardon Sydney Airport Whistleblower Allan Kessing, despite Nick Xenophon saying “The scandal here is that this man, who deserves a medal for the work that he did 10 years ago, was actually persecuted through the courts, had his life effectively ruined by virtue of being charged under Section 70 of the Crimes Act.” I’m told one of the good things about the new laws is they pass that Kessing test, so why is the government refusing to pardon him, particularly given the claims by Barrister Peter Lowe that the federal authorities withheld evidence at his trial?

The new laws are a start and might eventually morph into something useful, but I wouldn’t recommend anyone use them. The safest course of action for a whistleblower remains to not make the complaint in the first place.

The main problem with the legislation is that the Commonwealth Ombudsman is the authority designated to receive and investigate public disclosures, contrary to the recommendation of the 1994 Senate Select Committee to establish a Public Interest Disclosure Agency. The second problem with the legislation is that the protections offered to whistleblowers are very weak compared to legislation overseas. In the US False Claims Act, for example,

“Any employee who is discriminated against in the terms and conditions of employment by their employer because of a False Claims action shall be entitled to all relief necessary, which includes reinstatement with the same seniority status such employee would have had without the discrimination, twice the amount of back pay and compensation for any special damages sustained including litigation costs and attorneys’ fees. Whistleblowers are further entitled to 15-25% of the fraud recovered.”

Real whistleblowers, that is, people who have blown the whistle and paid the price, are very disappointed with the legislation. We were not listened to.

Brendan Jones’ OP does not contain inaccuracies and omissions. You have demonstrated to the public your inability to engage in proper debate by ignoring the issues that are correctly raised by Mr Jones and simply re-iterating generic statements.

Firstly, I am a former Commonwealth public sector whistleblower, and contrary to your statements, I successfully settled my case with the Commonwealth, prior to PIDL, by bringing a superior claim in common law for misfeasance in public office. That claim enabled me to bring personal action against senior public officials and hold the Commonwealth vicariously liable for punitive damages.

PIDL, on the other hand, has ensured that the Commonwealth department that enables senior officials to take reprisals against a whistleblower, will be protected from payment of punitive damages and prosecution. Where is the incentive I ask? The ludicrousness in this proposition is that complainants that make disclosures far less serious than public interest disclosures will have greater accessibility to the common law than whistleblowers. This result is clearly a by-product of your department’s incompetence in properly thinking through these outcomes.

The question of punitive damages was a point raised by Mr Jones in his OP, and one that you have specifically ignored to address. It is, therefore, correct to conclude, that it is you who is omitting to discuss the substantive shortcomings with PIDL, and not Mr Jones.

As for Professor AJ Brown’s endorsing of the whistleblower laws as ‘international best practice’, well such endorsement, quite frankly, is as credible as the Heart Foundation’s endorsement of McDonalds health menu.

The only experts here are actual whistleblowers. Academics funded through Government, hiding behind aging desks, are not authority on qualitative experience.

As to resorting to the Fair Work Act, well I already did that prior to PIDL, and found the limitations as to damages awards ie. No recovery for punitive damages and pure economic losses such as future loss of income, a most disabling and limiting factor. That was the reason I upgraded to the common law action of misfeasance in public office, and obviously found it to be a far more successful claim.

Now you rightly point out that departments engage in ‘terrorising’ whistleblowers, but sanctions somehow only apply to individuals. Terrorist acts endorsed through organisations are not done by individuals but by mobs, usually very senior ones representing the Commonwealth or Crown, and yet the Commonwealth now, through your PIDL, has legislative immunity.

And last time I checked, the Fair Work Act does not deal with senior ‘terrorist’ officials. You really need to be careful how you articulate your thoughts A-G Dreyfus. You leave your hypocrisy quite exposed and fresh for the taking!

I have also learned that when legislation uses undefined and open language like ‘reasonable grounds’ and ‘inadequate’, then the legislation is often designed as a tool for further oppression. PIDL is almost as bad as the Tax legislation, posited on discretionary assessments and subjective tests.

The only protection for whistleblowers is boycotting sham investigations into their complaints, being the very process used by senior public officials to terrorise whistleblowers and access the media, if possible, quickly and promptly after making their complaint. However, your PIDL has ensured that whistleblowers will be unable to even engage in their own self-protection.

I am really glad however that you have taken the time to respond, because this has given me, and others like Brendan, the opportunity to expose your hypocrisy and the hypocrisy of the Government you represent.

Legislative instruments left largely open to interpretation only lead to abuse of those instruments. The only people who win from these lazy approaches to the law are the lawyers arguing over the interpretation of the legislation.

Legislation should quite reasonably be drafted to benefit and support the majority of our society and uphold their basic rights, not to protect the few in significant positions of power who have already clearly demonstrated the extent to which they will re-interpret, ignore, confound or change the law to protect their own interests.

Surely, the imposition of up to 6 months incarceration for journalist must violate Australia’s obligations under the United Nations Convention on Human Rights.

It should bring a great sense of shame to any Australian citizen to know that Australia is one of the most consistent violators of international human rights laws, in what is considered to be a so called civilised society and that our citizens are not protected by a basic instrument such as a bill of rights.